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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
WORKERS' COMPENSATION DIVISION

DIVISION 1

PROCEDURAL RULES GOVERNING RULEMAKING AND HEARINGS

General Provisions

436-001-0000 [Renumbered to 436-001-0009]

436-001-0003

Applicability and Purpose of these Rules

(1) OAR 436-001-0005
through 436-001-0009 establish supplemental procedures for rulemaking under ORS
chapter 183 and apply to all division rulemaking on or after Jan. 1, 2010.

(2) OAR 436-001-0019
through 436-001-0300 establish supplemental procedures for hearings on matters within
the director’s jurisdiction, which are matters other than those concerning
a claim as defined in ORS 656.704.

(a) In general,
the rules of the Workers’ Compensation Board in OAR chapter 438 apply to the
conduct of hearings, unless these rules provide otherwise.

(b) These
rules do not apply to hearings requested under ORS 656.740.

(c) These
rules apply to hearings held on or after Dec. 28, 2012.

(3) OAR 436-001-0400
through 436-001-0440 apply to attorney fees awarded by the director under ORS 656.262
and 656.386, and to attorney fees awarded by the director or administrative law
judge under ORS 656.385(1).

(a) These
rules apply to attorney fees assessed by an order that is issued on or after Dec.
28, 2012.

(b) For attorney
fees that are ordered to be paid in reconsideration proceedings under ORS 656.268(6),
OAR 436-030-0175 applies.

(e) “Department”
means the Department of Consumer and Business Services.

(f) “Director”
means the director of the Department of Consumer and Business Services or the director’s
designee.

(g) “Division”
means the department’s Workers’ Compensation Division.

(h) “Filed”
means mailed, faxed, e-mailed, delivered, or otherwise submitted to the division
in a method allowable under these rules.

(i) “Final
order” means a final, written action of the director.

(j) “Mailed”
means addressed to the last known address, with sufficient postage and placed in
the custody of the U.S. Postal Service.

(k) “Party”
may include, but is not limited to, a worker, an employer, an insurer, a self-insured
employer, a managed care organization, a medical provider, or the division.

(l) “Proposed
and final order” means an order subject to revision by the director that becomes
final unless exceptions are timely filed or the director issues a notice of intent
to review the proposed and final order.

(2) Other
words and phrases have the same meaning as given in ORS 183.310, where applicable.

The Model Rules
for Rulemaking, OAR 137-001-0005 through 137-001-0100, in effect on Jan. 1, 2008,
adopted by the Oregon Department of Justice under ORS 183.341, are adopted as the
rules of procedure for rulemaking actions of the Workers’ Compensation Division.

NOTE: The
full text of the Model Rules is available from the Department of Justice, the Workers’
Compensation Division, or on the Oregon State Archives website: http://arcweb.sos.state.or.us/pages/rules/oars_100/oar_137/137_001.html

(1) A request for
hearing on a matter within the director’s jurisdiction must be filed with
the administrator no later than the filing deadline. Filing deadlines will not be
extended except as provided in section (7) of this rule.

(2) A request
for hearing must be in writing. A party may use the division’s Form 2839.
A request for hearing must include the following information, as applicable:

(a) The name,
address, and phone number of the party making the request;

(b) Whether
the party making the request is the worker, insurer, medical provider, employer,
any other party, or an attorney on behalf of a party;

(c) The number
of the administrative order being appealed;

(d) The worker’s
name, address, and phone number;

(e) The name,
address, and phone number of the worker’s attorney, if any;

(f) The date
of injury;

(g) The insurer’s
or self-insured employer’s claim number;

(h) The division’s
(WCD) file number; and

(i) The reason
for requesting a hearing.

(3) Requests
for hearing may be filed in any of the following ways:

(a) By mail.

(b) By hand-delivery.

(c) By fax,
if the document transmitted indicates that it has been delivered by fax, is sent
to the correct fax number, and indicates the date the document was sent.

(d) By e-mail
to wcd.hearings@state.or.us. If the request for hearing is an attachment to the
e-mail, it must be in a format that Microsoft Word 2007® (.docx, .doc, .txt,
.rtf) or Adobe Reader® (.pdf) can open. Image formats that can be viewed in
Internet Explorer® (.tif, .jpg) are also acceptable.

(e) By using
the online form available on the division’s website at wcd.oregon.gov.

(4) The requesting
party must send a copy of the request to all known parties and their legal representatives,
if any.

(5) Timeliness
of requests for hearing will be determined under OAR 436-001-0027.

(6) The director
will refer timely requests for hearing to the board for a hearing before an administrative
law judge. The director may withdraw a matter that has been referred if the request
for hearing is premature, if the issues in dispute become moot, or if the director
otherwise determines that the matter is not appropriate for hearing at that time.

(7) The director
will deny requests for hearing that are filed after the filing deadline. The party
may request a limited hearing on the denial of the request for hearing within 30
days after the mailing date of the denial. The request must be filed with the administrator.
At the limited hearing, the administrative law judge may consider only whether:

(a) The denied
request for hearing was filed timely; or

(b) Good
cause existed that prevented the party from timely requesting a hearing on the merits.
For the purpose of this rule, “good cause” includes, but is not limited
to, mistake, inadvertence, surprise, or excusable neglect.

(1) Except as provided
in section (3) of this rule, any filing, motion, request, document, or correspondence
filed or submitted in a matter within the director’s jurisdiction must be
filed or submitted:

(a) To the
division before the dispute is referred to the board;

(b) To the
administrative law judge after the dispute is referred to the board but before the
administrative law judge issues a proposed and final order; and

(c) To the
division after the administrative law judge issues a proposed and final order, unless
it is a request for correction of errors in the proposed and final order under OAR
436-001-0246(7).

(2) A copy
of any filing, motion, request, document, or correspondence must be sent to the
other parties, or their legal representatives, at the same time it is filed or submitted
to the division or administrative law judge.

(3) A party
must notify the division and the other parties of any changes in the party’s
mailing address or legal representation.

(1) Timeliness of any document required by these rules to be filed or submitted to the division is determined as follows:

(a) If a document is mailed, it will be considered filed on the date it is postmarked.

(b) If a document is faxed or e-mailed, it must be received by the division by 11:59 p.m. Pacific time to be considered filed on that date.

(c) If a document is delivered, it must be delivered during regular business hours to be considered filed on that date.

(2) The date and time of receipt for electronic filings is determined under ORS 84.043.

(3) Time periods allowed for a filing or submission to the division are calculated in calendar days. The first day is not included. The last day is included unless it is a Saturday, Sunday, or legal holiday. In that case, the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. Legal holidays are those listed in ORS 187.010 and 187.020.

(2) The director may appear
in a matter by filing an entry of appearance. The director may be represented by
an agency representative, assistant attorney general, or special assistant attorney
general as authorized by the Department of Justice. If the director enters an appearance,
all notices and documents in the hearing must be provided to the director’s
representative. An agency representative may represent the director in the following
categories of hearings:

(a) Hearings held before
the Administrative Law Judges of the Workers' Compensation Board to determine the
correctness of:

(A) An order under ORS 656.052
declaring a person, as defined in ORS 656.005(23), to be a noncomplying employer
(“NCE Orders”);

(B) A nonsubjectivity determination
under ORS 656.052 declaring either that a person, as defined in OR5 656.005(23),
is not a subject employer or is not a subject worker (“NSD Orders”);

(C) An order assessing a
civil penalty under ORS 656.735, 656.740, 656.745(2), or 656.750;

(D) An order under ORS 656.745(1)
assessing a civil penalty against an employer or insurer with prior written consent
of the Attorney-in-Charge of the Business Activities Section of the Department of
Justice; and

(E) An order under ORS 656.254(2)
imposing sanctions to enforce medical reporting requirements.

(b) In cases assigned to
lay representatives in accordance with subsection (a), above:

(A) Lay representatives are
authorized to handle all settlement negotiations related to proposed NCE Orders,
NSD Orders, and civil penalty or forfeiture orders. All settlement documents will
be reviewed for legal sufficiency by DOJ unless they conform to a form settlement
document approved by the Attorney-in-Charge of the Business Activities Section.
All settlement documents submitted to DOJ will be accompanied by the original proposed
order and any subsequent orders issued by WCD.

(B) If WCD issues a worker
nonsubjectivity denial (WNSD) instead of referring the claim to the assigned claims
agent, WCD's lay representative(s) may handle settlement negotiations resulting
from that WNSD. Once a request for hearing has been filed contesting that WNSD,
the lay representative(s) have seven calendar days within which to finalize any
pending settlement negotiations and must coordinate settlement discussions with
the assigned assistant attorney general or special assistant attorney general, who
will assume representation on the case. The assistant attorney general or special
assistant attorney general assigned to the case may extend the seven-day time period
by authorizing the lay representative(s) to continue settlement negotiations. All
settlement documents will be reviewed for legal sufficiency by the attorney assigned
to the case before submission to an Administrative Law Judge.

(c) Notwithstanding subsections
(a) or (b) above, and under ORS 656.704, DOJ will represent WCD in all matters pertaining
to a claim.

(3) The administrative law
judge shall not allow an agency representative appearing under section (2) of this
rule to present legal argument as defined by this rule.

(a) “Legal Argument”
includes arguments on:

(A) The jurisdiction of the
agency to hear the contested case;

(B) The constitutionality
of a statute or rule or the application of a constitutional requirement to an agency;
and

(C) The application of court
precedent to the facts of the particular contested case proceeding.

(b) “Legal Argument”
does not include presentation of motions, evidence, examination and cross-examination
of witnesses, or presentation of factual arguments or arguments on:

(A) The application of the
statutes or rules to the facts in the contested case;

(B) Comparison of prior actions
of the agency in handling similar situations;

(C) The literal meaning of
the statutes or rules directly applicable to the issues in the contested case;

(D) The admissibility of
evidence; and

(E) The correctness of procedures
being followed in the contested case hearing.

(4) If the administrative
law judge determines that statements or objections made by an agency representative
appearing under section (2) involve legal argument as defined in this rule, the
administrative law judge shall provide reasonable opportunity for the agency representative
to consult the Attorney General and permit the Attorney General to present argument
at the hearing or to file written legal argument within a reasonable time after
conclusion of the hearing.

(5) An agency representative
appearing under section (2) must read and be familiar with the Code of Conduct for
Non-Attorney Representatives at Administrative Hearings dated June 1, 2011, as amended
October 1, 2011, which is maintained by the Oregon Department of Justice and available
on its website at http://www.doj.state.or.us.

(1) The administrative
law judge may conduct the hearing in any manner, consistent with these rules, that
will achieve substantial justice.

(2) Unless
provided otherwise by statute or rule and except as stated in section (3) of this
rule, any order issued by an administrative law judge regarding a matter within
the director’s jurisdiction is a proposed and final order subject to review
by the director under OAR 436-001-0246.

(3) Where
appropriate, the administrative law judge may issue an interim order. An interim
order is not subject to review by the director under OAR 436-001-0246.

(4) The administrative
law judge may dismiss requests for hearing as provided in OAR 436-001-0296.

(5) Where
appropriate, the administrative law judge may remand a dispute to the director for
further administrative action.

(6) The administrative
law judge may consolidate matters in which there are common parties or common issues
of law or fact.

(7) The administrative
law judge may separate matters to promote efficient disposition of the matters.

(8) Consolidation
of matters under section (6) of this rule or under ORS 656.704(3)(c) is only for
the purpose of hearing. The administrative law judge must issue a separate order
for matters other than those concerning a claim.

(9) On the
motion of a party, the division, or the administrative law judge, the administrative
law judge may continue a hearing to allow the presentation of oral or written legal
argument by the Department of Justice.

(10) The
administrative law judge may send the division a written question regarding which
rules or statutes apply to a matter, or regarding the division’s interpretation
of the rules and statutes. If the administrative law judge sends such a question,
the administrative law judge must provide a written summary of the context in which
the question arises, provide a reasonable time for the division to respond, and
send a copy to all parties.

(11) The
administrative law judge may conduct a hearing by telephone if all parties agree.

(1) Except for the
matters listed in sections (2) and (3), the administrative law judge reviews all
matters within the director’s jurisdiction de novo, unless otherwise provided
by statute or administrative rule.

(2) In medical
service and medical treatment disputes under ORS 656.245, 656.247(3)(a), and 656.327,
and managed care disputes under ORS 656.260(16), the administrative law judge may
modify the director’s order only if it is not supported by substantial evidence
in the record or if it reflects an error of law. New evidence or issues may not
be admitted or considered.

(3) In vocational
assistance disputes under ORS 656.340, new evidence may be admitted and considered.
Under ORS 656.340(16), the administrative law judge may modify the director’s
order only if it:

(a) Violates
a statute or rule;

(b) Exceeds
the director’s statutory authority;

(c) Was made
upon unlawful procedure; or

(d) Was characterized
by abuse of discretion or clearly unwarranted exercise of discretion.

(1) Within 21 days after referral of the request for hearing to the board, the division will provide the parties and the administrative law judge copies of all documents that were relied upon in the underlying action or order, with an index.

(2) Not less than 28 days before the hearing, or within seven days of receipt of the division’s document index and documents, whichever is later, the petitioner(s) must provide copies of any additional exhibits they will offer at hearing to the other parties, the administrative law judge, and the director’s representative, if the director has filed an entry of appearance. The exhibits must be marked and include a supplemental index, numbered to coincide in chronological order with the division’s exhibits and exhibit list. For example, an exhibit that is chronologically between the division’s exhibits 5 and 6 would be marked as “Exhibit 5a” or “Ex. 5a.”

(3) Not less than 14 days before the hearing, the respondent(s)/cross-petitioner(s) must provide copies of any additional exhibits they will offer at hearing to the other parties, the administrative law judge, and the director’s representative, if the director has filed an entry of appearance. The exhibits must be marked and indexed in the same manner as provided in section (2).

(4) Unless withdrawn, all exhibits offered will be included in the hearing file, whether or not they are admitted into the evidentiary record.

(5) At the discretion of the administrative law judge, an accurate description or photograph of an object or real evidence may be substituted for the object or real evidence. The party offering the evidence is responsible for providing the description or photograph, and for retaining custody of the object until the case is closed.

(1) Under ORS 656.704(2)(a),
a party must seek director review of a proposed and final order before petitioning
for judicial review under ORS 183.482.

(2) The parties
or the division may initiate director review of a proposed and final order by filing
exceptions as follows:

(a) Written
exceptions, including any argument, must be filed with the administrator within
30 days of the mailing date of the proposed and final order;

(b) A written
response to the exceptions must be filed within 20 days of the date the exceptions
were filed;

(c) A written
reply to the response, if any, must be filed within 10 days of the date the response
was filed.

(3) The director
may extend the time periods in section (2) upon a party’s written request
that explains the need for the delay, or on the director’s own motion.

(4) If exceptions
are timely filed, the director may issue a final order or an amended proposed and
final order, request the administrative law judge to hold further hearing, or remand
the matter for further administrative action.

(5) Within
30 days of the mailing date of the proposed and final order, the director may issue
a notice of intent to review the proposed and final order, even if no exceptions
are filed.

(6) All proposed
and final orders must contain language notifying the parties of their right to file
exceptions, how to file, and the timeframes.

(7) The administrative
law judge may withdraw a proposed and final order for correction of errors within
10 calendar days of the mailing date of the order. The time for filing exceptions
begins on the date the corrected proposed and final order is mailed.

(8) If no
exceptions are timely filed or if no notice of intent to review is issued, the proposed
and final order will become final 30 days after the mailing date of the order.

(9) Any requests
for review or requests for reconsideration of a proposed and final order filed with
the board or administrative law judge within 30 days of the mailing date of the
order will be forwarded to the director and treated as timely exceptions under this
rule.

(1) A party may request that director review be stayed if exceptions are timely filed and there is a pending matter concerning a claim that may make the matter within the director’s jurisdiction moot.

(2) If matters are consolidated under ORS 656.704(3)(c), and a party requests board review of the order for those matters concerning a claim, and a party files exceptions on the proposed and final order for matters other than those concerning a claim, the director may stay director review of the proposed and final order. If director review is stayed, the parties will be provided the opportunity to file a written response and reply as provided in OAR 436-001-0246, and director review will then be stayed until the board issues an order for those matters concerning a claim.

(3) If matters are consolidated under ORS 656.704(3)(c), and a party requests board review of the order for those matters concerning a claim, and the administrative law judge remands the matters other than those concerning a claim to the director for further administrative action, the director may stay further administrative action until the board issues an order for those matters concerning a claim.

An ex parte communication is an oral or written communication to the administrator or administrator's designee during director review of the matter not made in the presence of all parties to the dispute, concerning a fact in issue, but does not include communication from division staff or the Department of Justice about legal issues or facts in the record. Ex parte communications received during director review will be promptly disclosed to all parties, and the parties will be allowed a reasonable opportunity to respond.

(1) If, after a request for hearing is filed but before a proposed and final order is issued, an agreement under ORS 656.236 or 656.289(4) is approved that resolves all issues in the matter within the director’s jurisdiction, the administrative law judge may issue a proposed and final order dismissing the request for hearing.

(2) If, after a request for hearing is filed but before a proposed and final order is issued, the parties reach agreement on all issues in the matter within the director’s jurisdiction, the administrative law judge may issue a proposed and final order approving the agreement and dismissing the request for hearing.

(3) If the matter within the director’s jurisdiction is consolidated with matters concerning a claim and the parties reach agreement on all issues in the matter within the director’s jurisdiction prior to issuance of a proposed and final order, the administrative law judge may issue a proposed and final order approving the agreement and dismissing the request for hearing.

(4) Notwithstanding OAR 436-001-0170(2), the administrative law judge may issue a final order of dismissal when the requesting party withdraws the request for hearing and no cross-request for hearing has been filed.

General Provisions and Requirements for Attorney Fees Awarded by the Director

(1) In order to be awarded an attorney fee, the attorney must file with the director a signed attorney retainer agreement.

(2) In cases in which time devoted is a factor in determining the amount of the fee, the attorney should submit a statement of the number of hours spent on the case. If the attorney has submitted a statement of hours and then spends more time on the case, the attorney may submit an updated statement, which the director will consider if an order has not already been issued. If the attorney does not submit a statement of hours, the director will presume the attorney spent one to two hours on the case.

(3) In cases in which a reasonable fee is to be assessed, the director may consider the following factors:

(a) The time devoted to the case.

(b) The complexity of the issues involved.

(c) The value of the interest involved.

(d) The skill of the attorney and the quality of representation.

(e) The nature of the proceedings.

(f) The benefit secured for the worker.

(g) The risk in a particular case that an attorney’s efforts may go uncompensated.

(1) In cases in
which the director or administrative law judge awards a fee under ORS 656.385(1):

(a) The fee
must fall within the ranges of the matrix in subsection (1)(d), unless extraordinary
circumstances are shown or the parties otherwise agree.

(b) Extraordinary
circumstances are not established merely by exceeding eight hours or a benefit of
$6,000.

(c) The matrix
in subsection (1)(d) shows the maximum fee and fee ranges as percentages of the
maximum fee under ORS 656.385(1), as adjusted annually by the same percentage increase,
if any, to the average weekly wage defined in ORS 656.211. Before July 1 of each
year the director will publish, in Bulletin 356, the matrix showing the maximum
fee and fee ranges as dollar amounts after the annual adjustment to the statutory
maximum fee. Dollar amounts will be rounded to the nearest whole dollar. If the
average weekly wage does not change or decreases, the maximum attorney fee awarded
under ORS 656.385(1) will not be adjusted for that year.

(d) [Table
not included. See ED. NOTE.]

(2) For purposes
of applying the matrix in medical disputes under ORS 656.245, 656.247, 656.260,
and 656.327, the following may be considered in determining the value of the results
achieved or the benefit to the worker:

(a) The fee
allowed by the medical fee schedule in OAR 436-009 for the medical service at issue.

(b) The overall
cost of the medical service at issue.

(3) For purposes
of applying the matrix in vocational disputes under ORS 656.340, the value of vocational
assistance or a training plan, unless determined to be otherwise, falls within the
highest range of the matrix for “benefit achieved.” In addition, the
following may be considered in determining the value of the results achieved or
the benefit to the worker:

(a) The actual
or projected cost of the service at issue.

(b) The maximum
spending limit in the fee schedule for vocational assistance costs in OAR 436-120-0720
for the service at issue.

The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
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